Marshall Estate, Re, 2006 NSSC 38

• Judge: Haliburton, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 24, 2006
• Jurisdiction: Nova Scotia
• Citations: 2006 NSSC 38;(2006), 247 N.S.R.(2d) 233 (SC)

Marshall Estate, Re (2006), 247 N.S.R.(2d) 233 (SC);

    785 A.P.R. 233

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. SE.005

In The Estate Of Gladys Goldie Marshall, late of Church Road, Clarence, in the County of Annapolis and Province of Nova Scotia, deceased

(Probate No. 4506; 2006 NSSC 38)

Indexed As: Marshall Estate, Re

Nova Scotia Supreme Court

Haliburton, J.

August 31, 2006.

Summary:

Marshall died intestate in 2000. She never married and died leaving a number of kindred (brothers, sisters, nephews and nieces). Marshall gave birth to a daughter in 1950. The daughter was adopted by strangers in 1952. At issue was whether the daughter's 1952 adoption terminated her right to inherit from her natural mother as a "lawful lineal descendant" under the Intestate Succession Act.

The Nova Scotia Supreme Court held that the adoption terminated the relationship between the daughter and her natural mother absolutely and for all purposes.

Devolution of Estates - Topic 446

Devolution - General - Children - Effect of adoption - Marshall died intestate in 2000 - She never married and died leaving a number of kindred (brothers, sisters, nephews and nieces) - Marshall gave birth to a daughter in 1950 - The daughter was adopted by strangers in 1952 - The daughter claimed as the sole "lawful lineal descendant" of her natural mother under the Intestate Succession Act - The Adoption Act in force in 1952 was ambiguous as to whether an adopted child could inherit from a natural parent, but 1967 amending legislation rectified the ambiguity by providing that an adoption terminated any right to inherit from a natural parent - The Nova Scotia Supreme Court dismissed the daughter's application - The relationship between an adopted child and his/her natural parent was terminated absolutely and for all purposes by an adoption order - The adopted daughter was no longer "issue" of her natural mother.

Family Law - Topic 1674

Adoption - Effect of adoption - On inheritance rights - [See Devolution of Estates - Topic 446 ].

Cases Noticed:

Oliphant Estate, Re (1990), 84 Sask.R. 44; 38 E.T.R. 133 (Q.B.), refd to. [para. 20].

Huston v. Ash and Webster and Public Trustee of Manitoba, [1985] 2 W.W.R. 634, 15 D.L.R. (4th) 469 (Man. C.A.), refd to. [para. 24].

Hart v. Hart Estate (1993), 124 N.S.R.(2d) 333; 345 A.P.R. 333 (T.D.), refd to. [para. 27].

Re Podolsky Estate (1980), 3 Man.R.(2d) 251; 111 D.L.R.(3d) 159 (C.A.), refd to. [para. 28].

Mernickle v. Hartman Estate (1986), 1 B.C.L.R.(2d) 267; 25 D.L.R.(4th) 758 (C.A.), refd to. [para. 29].

Trombley Estate v. Rachow (1988), 67 O.R.(2d) 35 (H.C.), refd to. [para. 32].

Matthews Estate, Re (1992), 126 A.R. 287; 1 Alta. L.R.(3d) 198 (Q.B.), refd to. [para. 33].

Benefield et al. v. Hrenko Estate, [2001] 7 W.W.R. 402; 287 A.R. 33; 2001 ABQB 242, refd to. [para. 34].

Statutes Noticed:

Adoption Act, R.S.N.S. 1967, c. 2, sect. 10, sect. 12 [para. 11].

Children and Family Services Act, S.N. 1990, c. 5, sect. 67(1)(d), sect. 67(1)(e), sect. 78(5), sect. 78(6), sect. 78A(1), sect. 78A(4), sect. 80(1), sect. 80(2), sect. 80(4), sect. 81, sect. 82 [para. 16].

Intestate Succession Act, R.S.N.S. 1989, c. 236, sect. 2(a), sect. 2(b), sect. 4(7), sect. 16 [para. 17].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed. 1955), vols. 16, p. 395, para. 764 [para. 14]; 21, p. 239, para. 518 [para. 13].

MacGregor, Mary L., Preparation of Wills and Powers of Attorney (2nd Ed. 1996), generally [para. 15].

Counsel:

W. Bruce Gillis, Q.C., for the Estate;

Donald S. Taylor, Q.C., for Patricia Strong, natural child;

Eric Sturk, for the Heirs at Law.

This application was heard on January 24, 2006, at Annapolis Royal, N.S., before Haliburton, J., of the Nova Scotia Supreme Court, who delivered the following decision on August 31, 2006.